Fighting Words Are Not Free Speech

This post isn’t written for everyone. Oh, you’re all welcome to read it and comment on it, but it’s written for what I think is a small subsection of readers: those of you who believe there are absolutely no limits to free speech. Those who believe “expressing your opinion” in someone’s face is your inviolable right. Those who believe violence doesn’t begin until one person puts their hands on another person.

We saw the end result of that line of thinking two weeks ago in Portland. Even after the murder of two heroic bystanders, I’m seeing some people who insist we must tolerate the hate-filled rants of people like this killer, all in the name of “free speech.”

If this is you, you are wrong. Dangerously wrong.

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Fighting words are against the law

“Them’s fightin’ words” may be a clichéd line out of an old Western movie, but there’s a recognized legal principle behind it, articulated in a 1942 Supreme Court case. While the law is not an absolute judge of right and wrong, in this case the law simply recognizes common sense: “epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace” are not protected speech under the First Amendment. In these cases, violence does not begin with the first punch, but with the words that provoke the first punch.

Before that, in a 1919 case Justice Oliver Wendell Holmes wrote the famous line that “the most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.” Freedom of speech is not absolute – you must consider how listeners will respond to your words.

Fighting words directed at someone who can’t fight is cowardly

Continuing the Western movie theme, it’s one thing if Cowboy 1 wants to pick a fight with Cowboy 2. It’s quite another thing if a large young man starts yelling insults and threats at women who are clearly no physical match for him. In the words kindergarteners everywhere “go pick on someone your own size.”

You still have no legal or moral right to verbally assault a strong young man, a female martial artist, or an old man carrying a gun. But at least in those cases you understand you might get your ass kicked, or worse.

Verbally assaulting someone who can’t fight back is the mark of a coward.

Expressing unpopular opinions is one thing, attacking individuals is another

The First Amendment is intended to protect political speech, including political speech many of us don’t like. To paraphrase another famous Supreme Court Justice (Louis Brandeis, writing in 1927) “the remedy for offensive speech is more speech, not enforced silence.” If someone wants to argue that Islam is a bad religion or that all immigration should be stopped or that Donald Trump is a good President, they are free to do so, whether they write a blog post, preach on the street corner, or host a talk radio show.  It falls to the rest of us to make the case that experience and reason show their ideas are wrong.

But when you move from generally expressing an opinion in a venue where opinions are regularly expressed to aggressively expressing an opinion toward someone who has shown no indication they wish to engage in debate, you move from promoting your opinions to verbal assault.

You start talking at people even though they clearly don’t want to talk to you? You corner people in a place where they can’t easily get away (like on a train) or you follow them when they try to leave? You “express your opinion” aggressively toward people you know won’t just be offended, but will be fearful?

That’s not free speech. That’s using free speech as a pretext for verbal assault.

Freedom of speech does not mean freedom from consequences

Actions have consequences. I hear Christian fundamentalists complain that when they express their “sincerely held religious beliefs” on homosexuality other people don’t want to do business with them. What did they expect would happen? If you inject religion and politics in your business, don’t be surprised when people make business decisions based on how well they like your religion and politics. Anybody remember the Dixie Chicks?

Sometimes your speech causes people to react against you. Other times your speech inspires and enables people take action on their own, perhaps to an extent you never intended. If you preach that certain groups of people are inherently evil, and you call for bad things to happen to them, you bear some responsibility if some member of your audience decides to take things further than you intended.

Hate speech is not free speech, because hate speech motivates some people to verbal and physical violence.

I care what you do, not what you think

If you believe Christianity is the One True Religion and everyone else is going to hell, that’s your business. We can still work together in a secular environment or in an interfaith setting where our different religions inspire us to similar actions. You treat me with dignity and respect and I’ll treat you with dignity and respect.

If you want to engage in respectful religious debate, I’ll be happy to participate. I enjoy this sort of dialogue. Not everyone does, though, and I expect you to respect their decisions not to debate.

Wearing religious garb or jewelry in public is not an invitation for debate.

If you want to interrupt me when I’m busy, we’re going to have a problem. If you want to carry on long after we’ve been talking past each other, we’re going to have a problem. If you want to scream in my face, we’re going to have a problem. Keep it up long enough and the problem will be addressed with things like restraining orders and binding spells… or more.

Your right to free speech does not trump someone else’s right to live in peace

There is no right to not be offended, and offensive speech is still free speech. But threatening speech is fighting words. Harassing speech is fighting words. Hate speech is fighting words.

Fighting words are not free speech, and fighting words directed at someone who cannot fight back is the mark of a coward.

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